UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
2:03-cr-158-KJD-PAL
May 29, 2013

Opinion by United States District Judge Kent J. Dawson:

This matter is before the Court on remand from the Ninth Circuit Court of Appeals for the limited purpose of granting or denying a certificate of appealability.
…
This case arises from the armed robbery of Chong Hing Jewelers in Las Vegas Nevada. In the course of the robbery, several luxury watches having a value of approximately $885,000 were taken by two individuals. The robbers were covered, head-to-toe, in ninja-style white clothing. Before entering the store, one of the robbers executed the store security guard who had his back to them and was cleaning store windows. Eye witnesses had little to go on in describing the robbers other than the fact that one was carrying an assault-type rifle and the other was carrying a bag, and there appeared to be a height difference between the two individuals. The robbers were inside the store for no more than 90 seconds and store employees were assaulted in the process of the robbers obtaining access to the contents of display cabinets.
…
There was no deficiency in performance of counsel where counsel based the defense on a theory of lack of presence at the scene, incorporating facts and testimony of eyewitnesses to the crime combined with a lack of physical evidence placing Defendant there. This is also entirely consistent with the claim of Defense counsel that they were not previously informed by Defendant of his participation in the robbery. However, even if Defendant did inform counsel of his involvement and potential defense to the shooting, the outcome would not have been different.
…
Accordingly, Defendant is denied a certificate of appealability.

This may be the first mention of a white ninja outfit, as the prior clothing references refer to mostly (if not always) black clothing, but definitely not the first ninja robbery.

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION

January 31, 2013, Filed

Opinion by US District Judge Kevin H. Sharp.

Petitioner Le’Mar Ninja Delvon Brooks was convicted …March 22, 2001… on two counts of first degree murder by a jury and sentenced to two consecutive life prison terms.
Footnote1: Under Tennessee law, this means that the petitioner must serve one hundred and four years in prison before becoming eligible for parole. (See ECF No. 10-20, at 15:18-19.)

and

CONCLUSION

This case is somewhat troubling precisely because the State’s evidence was scant and contradictory, and the petitioner’s trial counsel clearly did not do all he could have done to call the State’s marginal evidence into question. The fact that a young man was given an effective sentence of 104 years on such slim evidence is further cause of concern. Notwithstanding, it is not this Court’s prerogative to review the evidence, or to second-guess the state courts’ decisions. Rather, this Court must simply consider whether the state court’s adjudication of the petitioner’s claims was contrary to, or involved an unreasonable application of, clearly established federal law, or if it involved an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d). Under this standard, the petitioner has not established that he is entitled to relief on the basis of any of his claims. The petition must therefore be denied.

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS, FORT WORTH DIVISION

June 26, 2012, Decided
June 26, 2012, Filed

Opinion by US District Judge John Mcbryde:

In affirming the trial court’s judgment, the Second Court of Appeals of Texas set out the factual and procedural background of the case as follows:

A grand jury indicted Appellant for aggravated sexual assault of a minor. Appellant pleaded “not guilty,” and the case was tried to a jury.

M.L. was born in 1995, and he was eleven years old at the time of trial. His mother, Christine, testified that she met Appellant at work in 1998 and that they developed a romantic relationship while living together as roommates. Christine and Appellant had two children together, Z.H. in 1999 and K.H. in 2002. Christine testified that her relationship with Appellant was imperfect and that he eventually became physically abusive.

Christine testified that she moved to Boston with the children to get away from Appellant, but Appellant followed them to Boston two months later. She said that while they were living in Boston, M.L.’s teacher made a physical-abuse referral to Child Protective Services (“CPS”). Christine testified that CPS investigated and concluded that Appellant had physically abused M.L. Christine said that after living in Boston for about a year, she, Appellant, and the children moved to Arkansas, where Appellant’s family lived. She later left Appellant and returned to Texas with the children.

Christine testified that when M.L. was almost ten, she and M.L. were watching a television news program about a man who said he had been molested. She said that M.L. then told her that Appellant had blindfolded him, taken him to the bathroom, told him he was going to give him some candy, instructed him to open his mouth, and put Appellant’s penis into M.L.’s mouth. She testified that M.L. said that he did not tell her sooner because he was scared Appellant would kill him if he told anyone. Christine reported M.L.’s outcry to Irving police, whose investigation ultimately led to this case.

M.L. testified that when he was three years old and lived in Texas (he could not remember what city) with Christine and Appellant, Appellant would sometimes watch him when Christine was at work. He testified that Appellant would play “the ninja game,” in which Appellant would put a plastic grocery bag over M.L.’s head and prevent M.L. from breathing. He said that if he got dizzy and fell down, Appellant would tie the bag shut at M.L.’s neck. M.L. said they played the ninja game “a lot.”

M.L. also testified that Appellant would sometimes choke him with one or both hands. He testified that Appellant told M.L. he would kill him if he told Christine about the ninja game.

The convicted person now argues that some of this evidence was unfairly prejudicial:

Appellant argues that the trial court abused its discretion by admitting evidence concerning the extraneous offenses against M.L., specifically, the “ninja game,” the choking and belt-hanging incidents, and the injury to M.L.’s head.

arguing:

M.L.’s horrific testimony about the “ninja game” and being hung by the neck with a belt had the tendency to confuse or distract the jury from the main issue, whether Appellant sexually assaulted M.L., and there was a danger that the jury would give the physical abuse testimony undue weight.

This argument was made in the State courts and denied, now again, habeas petition denied:

A schizophrenic prisoner was sent to disciplinary segregation and claims violation of due process. Court disagrees. Ninja is in reference to the style of shoes provided to prisoners in segregation – “ninja-style soft shoes”

Plaintiff suffers from paranoid schizophrenia and schizoaffective disorder. (Amended Compl. [Docket No. 15], p. 2.) Initially, Plaintiff was incarcerated in MCF-St. Cloud in December 2008. (Id). Plaintiff has been incarcerated at MCF-Oak Park Heights (MCF-OPH) and MCF-Stillwater since January 2009. (McComb Aff. [Docket No. 41], Ex. A). While at MCF-OPH and MCF-Stillwater, Plaintiff spent time in the administrative control unit. Id.

Throughout his time incarcerated, Plaintiff has received a number of disciplinary violations. (Green Aff. [Docket No. 80], Ex. D). From December 2008 to the filing of Plaintiff complaint on March 29, 2010, Plaintiff has been involved in 19 separate disciplinary incidents. Id. These violations have resulted in lengthy stays in disciplinary segregation for the Plaintiff. Id. One violation that occurred on November 23, 2009 required Plaintiff to spend 240 days in disciplinary segregation. Id. Other punishments, however, have been shorter. Plaintiff only received five days in administrative segregation for one of his violations. Id. [Footnote1: Plaintiff’s major disciplinary violations have also added approximately 370 days to his incarceration. (Green Aff.)]

Regarding due process claims:

the Court finds that this case mirrors the claim in Johnson v. Beard, 2008 U.S. Dist. LEXIS 113616, 2008 WL 2594034 (M.D. Pa. June 27, 2008). In that case, the prisoner raised an identical claim to that of the Plaintiff’s now before this Court. Specifically, the prisoner in Johnson alleged that “Defendants violated his due process rights by placing him in punitive segregation lock-down for at least 1090 days as punishment for the symptoms of his mental illness.” Johnson, 2008 U.S. Dist. LEXIS 113616, 2008 WL 2594034, at * 6. However, the Court found that placing a prisoner in punitive segregation, even if he suffered from a mental illness, did not constitute an atypical and significant hardship creating a liberty interest protected by the due process clause. 2008 U.S. Dist. LEXIS 113616, [WL] at * 7. In the instant case, like in Johnson, the Plaintiff contends that his placement in punitive segregation for 19 months was punishment for having a mental illness. But, such placement does not create a protected liberty interest.

Plaintiff has not presented any admissible evidence that his time spent in punitive segregation was so restrictive that it was atypical and significant in relation to the ordinary incidents of prison life. [Footnote4: Plaintiff contends that the restrictions of punitive segregation are more onerous than those of administrative segregation and prisoners in punitive segregation are allowed $20 dollars to purchase items from the canteen, only receive “county jail-like ‘pajama’ clothes,” receive “ninja-style soft shoes,” must use communal underwear and socks, are not allowed photographs, newspapers, and magazines, and cannot receive visits. (Pl’s Mem. in Opp’n, p. 18). However, these limitations do not give constitute a significant and atypical hardship. See Emil v. Crawford, 125 Fed.Appx. 112, 112-13 (9th Cir. 2005) (finding that the denial of canteen privileges does not trigger due process rights); Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997) (holding that administrative segregation for six months with vermin; human waste; flooded toilet; unbearable heat; cold food; dirty clothing, linens, and bedding; longer periods in cell; no outside recreation; no educational or religious services; and less food was not so atypical as to impose significant hardship); Ind v. Colorado Dept. of Corrs., 2011 U.S. Dist. LEXIS 151833, 2012 WL 161418 (D. Colo. Jan. 19, 2012)(restrictions on books and magazines does not violate a constitutional right); Gordon v. Downs, 175 Fed.Appx. 798, 798-99 (9th Cir. 2006)(affirming district court’s finding that suspending visitation rights without a disciplinary hearing did not create an “atypical and significant hardship in relation to the ordinary incidents of prison life”); Ware v. Morrison, 276 F.3d 385, 387 (8th Cir. 2002) (“loss of visitation privileges is within the ordinary incidents of confinement and cannot be considered an atypical and significant hardship”).]

Plaintiff has, therefore, not created a genuine issue of material fact that he has a protected liberty interest to not be placed in segregated confinement for disciplinary infractions which would give rise to a right to due process before being placed in segregation. On this claim, the Court recommends that the Defendants’ summary judgment motion be granted.

This case below, like the Singer case, is about obtaining D&D books in prison, and cites to Meyer and Thompson:

Defendant also cites several cases that have recognized the dangerous influence Dungeons and Dragons can have on its participants. See Meyer v. Branker, 506 F.3d 358, 370 (4th Cir. 2007) (noting that defendant was obsessed with Dungeons and Dragons and that this obsession caused him to retreat into a fantasy world of ninja warriors); Thompson v. Dixon, 987 F.2d 1038, 1039 (4th Cir. 1993) (affirming the conviction of one of two men who brought a Dungeons and Dragons adventure to life by entering the home of an elderly couple and assassinating them);

going on to mention

Watters v. TSR, Inc., 904 F.2d 378, 380 (6th Cir. 1990) (describing a teenager who committed suicide as a devoted Dungeons and Dragons player who became absorbed by the game to the point of losing touch with reality).

Plaintiff alleges he is a prisoner at Pleasant Valley State Prison (“PVSP”) in Coalinga, California, at the time of the events relevant to this lawsuit. Plaintiff claims his First Amendment right to free speech was violated because PVSP officials prohibited inmates from possessing publications related to role-playing games, such as Dungeons and Dragons.

Specifically, Plaintiff alleges his copy of “The Forgotten Temple of Tharizdun” was confiscated by PVSP officials in the mailroom sometime around June 21, 2006. On June 27, 2006, Plaintiff received a notification informing him that the publication was banned because it violated Operational Procedure 59, § RR(14), which bans any materials containing “[c]oded messages or any other item that may be deemed a threat to the safety or security of the prison.”

Concluding:

The Court finds that Plaintiff has failed to come forward with evidence seriously challenging Defendant’s contention that the prohibition against Dungeons and Dragons materials is rationally related to legitimate security interests. Accordingly, the Court will recommend that Defendant’s motion for summary judgment be granted.

In the brief there are set forth “[u]ncontested [f]acts” pertinent to the charge, which concerned the premeditated murder of Mrs. Brenda Salomon on August 18, 1989. (Id. at 17.) Petitioner confessed to the killing, revealing that while at the Shipwreck Lounge, he encountered Salomon and then left the lounge. When Petitioner entered his truck, Salomon, who was very drunk, tapped on the window and asked Petitioner to take her out to get something to eat. Petitioner agreed and bought Salomon some fast food. When Salomon passed out several times and failed to tell Petitioner where she lived, Petitioner stopped at a telephone booth and told her to get out of his truck and call someone to come to pick her up. When she called him names, slapped him, and failed to leave the truck, he drove into a wooded area, stopped, and ordered her out of the truck. A physical altercation ensued, and Petitioner pulled Salomon out of the truck. When Salomon removed her shorts, taunted Petitioner, and attacked him as he tried to enter his truck, Petitioner became enraged, hit her repeatedly, retrieved his “Ninja To” sword from the truck, and struck Salomon so hard that the sword’s handle detached from its blade. (Id. at 18, 21-23.) The blow severed her spinal cord and vertical arteries. (Id.)

Petitioner returned to the lounge after retrieving the sword and throwing Salomon’s things out of the truck, and stayed there until closing time. The body was discovered in a wooded area on the Camp Lejeune Marine Corps base, and multiple items of corroborating evidence were found. (Id. at 17-18.)

Petitioner prosecuted as a court martial under military law, impacting this Court’s jurisdiction and scope of review:

In the present case, Petitioner acknowledges that his case was reviewed by both the Navy-Marine Corps of Military Review and the United States Court of Military Appeals. (Pet. 2.)

All of the petitioner’s claims here for habeas relief are denied, some are not ripe because of non-exhausted administrative remedies, regarding alleged prosecutorial misconduct denied because the military court had already looked into it, and no jurisdiction to review military discharge.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

2010 U.S. Dist. LEXIS 116985

Decided November 3, 2010 by US Magistrate Judge Greg White:

Marbury alleges that on September 24, 2008, while he was in Local Control (segregation) at MCI, C/O Windom assaulted him. (Doc. No. 1-1 at 19; Doc. No. 24 at 3.) Specifically, he alleges that C/O Windom “chopped” him in the neck/head in front of Sgt. Dewalt’s office. (Doc. Nos. 24 at 3; 42 at 4.) Marbury contends that the incident occurred while C/O Windom was returning him to his cell. (Doc. No. 142 at 3.) Marbury had attended a hearing where he learned he was being charged with “assault of a corrections officer” and now would be transferred to a Level 4 prison. Id.

C/O Windom states that as he was escorting Marbury to his cell on September 24, 2008, Marbury stopped to talk to another inmate. (Doc. No. 136-1, Windom Decl., ¶ 3.) C/O Windom then placed his hand on Marbury’s shoulder in order to get his attention. Id. Marbury fell to the ground and said something to the effect of: “You gave me one of those Ninja chop[s]. Half my body is paralyzed. However, if you give me a cup of coffee, I’ll go to my cell.” (Windom Decl., ¶ 4.) Marbury does not deny that he made this statement to C/O Windom. C/O Windom next states that Marbury voluntarily proceeded to his cell. [Footnote #2: C/O Windom stated that he believed he took a cup of coffee to Marbury in his cell. Id.] C/O Windom further acknowledged that he had no other problems with Marbury. (Id. at ¶¶ 3, 4, 8.)

On September 26, 2008, Marbury was examined by Nurse Barker at 9:00 p.m. during sick call. (Doc. No. 137, Barker Decl., ¶ 2.) Barker noted that Marbury complained that he had been assaulted on the morning of September 26, 2008, not September 24. (Barker Decl., ¶ 3.) He further noted that Marbury refused to remove his clothes to be examined and that, otherwise, no physical injuries were noted. (Barker Decl., ¶ 4.)

The Court notes:

C/O Windom contends that he simply placed his hand on Marbury’s shoulder in order to continue guiding him towards his cell. (Doc. No. 136 at 2.) C/O Windom argues that Marbury’s allegations have been found not credible by the prison administrators, and more importantly, he presents no evidence of any injury. (Doc. No. 136 at 3.)

Convicted murderer F.T. Freeman was granted writ of habeas corpus in 2010 by a District Court in Michigan. But the 6th circuit reversed in 2012. The issue is equitable tolling and discovery of attorney drug addiction and major trial mistakes. The “ninja” is reference to an alleged prosecutor’s witness derogatory characterization of the defendant.

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION

744 F. Supp. 2d 697

Decided October 14, 2010 by US District Judge Denise Page Hood:

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Frederick Thomas Freeman, (“Petitioner”), who is confined at the Saginaw Correctional Facility in Freeland, Michigan, has filed a petition for writ of habeas corpus through counsel raising the following claims: (1) Petitioner was denied the right to make a record regarding his defense attorney’s drug use; (2) ineffective assistance of counsel; (3) ineffective assistance of appellate counsel; (4) prosecutorial misconduct; (5) actual innocence; (6) trial court error in allowing Petitioner to be dressed in prison garb and shackles in the presence of the jury; (7) jury instruction error; and (8) cumulative error. Petitioner was convicted of first-degree murder, Mich. Comp. Laws §750.316. He was sentenced to life imprisonment. For the reasons that follow, the petition will be conditionally granted.

FACTUAL BACKGROUND

Petitioner’s conviction arose from the shooting death of Scott Macklem, on November 5, 1986, in the parking lot of St. Clair Community College shortly before 9:00 am. The prosecution theorizes that Mr. Macklem was murdered by Petitioner due to his jealousy of Crystal Merrill and Mr. Macklem’s relationship. Crystal Merrill is the former girlfriend of Petitioner. Ms. Merrill and Mr. Macklem were engaged to be married and were expecting their first child together. Petitioner argues that he did not commit the murder and that he was not at the scene of the shooting. Petitioner produced alibi witnesses at trial to support his theory of the case.

and

Petitioner makes the following claim of prosecutorial misconduct:

The prosecution repeatedly elicited from witnesses such prejudicial but irrelevant material, seeking through these witnesses to portray the Petitioner as a violent man, a ‘Ninja assassin,’ a ‘psychological terrorist.'” Witnesses were asked to describe the Petitioner as “frightening” (e.g. Heidi Bartel, Joplin, and John Manalli) and one who committed violent acts (e.g. Thomas Forde and Paul Demares) all of which had nothing to do with the victim in this case. The prosecution displayed in the courtroom an inflammatory array of items which were never connected to the Petitioner and were never offered in evidence, including guns, knives, and other weapons, martial arts equipment, pornographic magazines and listening devices.

The Court responds that:

None of the questions or answers rise to the level required for prosecutorial misconduct.

Nevertheless, this District Court does grant habeas based on other grounds and orders a new trial (particularly for ineffective assistance of counsel … not just the attorney’s drug use, but as regards preserving right to call an alibi witness and preventing the defendant from testifying on his own behalf). But this writ of habeas corpus is reversed by the 6th Circuit in 2012.

The major issue of the case is the time limit and whether the case deserves equitable tolling. The 6th Circuit before Circuit Judges Martin and McKeague and District Judge Caldwell, sitting by designation, concludes in opinion by Circuit Judge McKeague, May 18, 2012:

Freeman has failed to carry his burden of showing either actual innocence or entitlement to an evidentiary hearing. His petition is time-barred. It follows that the remaining issues presented both by the Warden’s appeal and Freeman’s cross-appeal are rendered moot.

In this case decided in 2010, a prisoner had his Dungeons and Dragons material confiscated and was prevented from engaging in gameplay or possessing the book materials. This Court of Appeals affirmed. There are no first amendment rights to play dungeon and dragons in prison. The Court cites to Meyer v Branker (Ninjalaw 68) amongst other cases that legitimize a claim that D&D can lead to unhealthy fantasy-seeking escapist-behaviors, at least in some people. Therefore the government prison has a legitimate interest in banning the content.

After concluding that the popular role-playing game Dungeons and Dragons (“D&D”) represented a threat to prison security, officials at Wisconsin’s Waupun Correctional Institution took action to eradicate D&D within the prison’s walls. Inmate Kevin T. Singer found himself on the front lines of Waupun’s war on D&D when prison officials confiscated a large quantity of D&D-related publications from his cell. Singer sought relief from the prison’s new regulations–and the return of his D&D materials–through the prison’s complaint system, a pursuit which ultimately proved fruitless. Singer then brought this action against a variety of prison officials pursuant to 42 U.S.C. § 1983. He alleged that Waupun’s confiscation of his D&D materials and imposition of a ban on D&D play violated his First Amendment right to free speech and his Fourteenth Amendment rights to due process and equal protection. The prison officials moved for summary judgment on all of Singer’s claims, and the district court granted their motion in full. Singer appeals the grant of summary judgment with respect to his First Amendment claims, and we affirm.

I. Background

Kevin T. Singer is an inmate at Wisconsin’s Waupun Correctional Institution. He is also a devoted player of D&D, a fantasy role-playing game in which players collectively develop a story around characters whose personae they adopt. Singer has been a D&D enthusiast since childhood and over time has acquired numerous D&D-related publications. His enthusiasm for D&D is such that he has handwritten a ninety-six page manuscript outlining the specific details of a “campaign setting” he developed for use in D&D gameplay. Footnote #1: A typical D&D game is made up of an “adventure,” or single story that players develop as a group. A related series of games and adventures becomes a “campaign.” The fictional locations in which the adventures and campaigns take place–ranging in size and complexity from cities to entire universes–are called “campaign settings.” For more information about D&D and D&D gameplay, see Wizards of the Coast, What is D&D?, http://www.wizards.com/default.asp?x=dnd/whatisdnd (last visited Jan. 20, 2010).

Singer’s devotion to D&D was unwavering during his incarceration at Waupun. He frequently ordered D&D publications and game materials by mail and had them delivered to his cell. Singer was able to order and possess his D&D materials without incident from June 2002 until November 2004. This all changed on or about November 14, 2004, when Waupun’s long-serving Disruptive Group Coordinator, Captain Bruce Muraski, received an anonymous letter from an inmate. The letter expressed concern that Singer and three other inmates were forming a D&D gang and were trying to recruit others to join by passing around their D&D publications and touting the “rush” they got from playing the game. Muraski, Waupun’s expert on gang activity, decided to heed the letter’s advice and “check into this gang before it gets out of hand.”

On November 15, 2004, Muraski ordered Waupun staff to search the cells of the inmates named in the letter. The search of Singer’s cell turned up twenty-one books, fourteen magazines, and Singer’s handwritten D&D manuscript, all of which were confiscated. Muraski examined the confiscated materials and determined that they were all D&D related. In a December 6, 2004 letter to Singer, Muraski informed Singer that “inmates are not allowed to engage in or possess written material that details rules, codes, dogma of games/activities such as ‘Dungeons and Dragons’ because it promotes fantasy role playing, competitive hostility, violence, addictive escape behaviors, and possible gambling.” This prohibition was later reiterated in a daily bulletin that was posted throughout the prison. It was also incorporated into a broader policy prohibiting inmates from engaging in all types of fantasy games.

Though plaintiff cited “a literacy tutor and a role-playing game analyst, testified to a positive relationship between D&D and rehabilitation, none disputed or even acknowledged the prison officials’ assertions that there are valid reasons to fear a relationship running in the opposite direction”:

The prison officials pointed to a few published circuit court cases to give traction to their views. We view these cases as persuasive evidence that for some individuals, games like D&D can impede rehabilitation, lead to escapist tendencies, or result in more dire consequences. See Meyer v. Branker, 506 F.3d 358, 370 (4th Cir. 2007) (noting that defendant Meyer “was obsessed with Dungeons and Dragons,” and that “this obsession caused ‘[him] to retreat into a fantasy world of Ninja warriors’ “); Thompson v. Dixon, 987 F.2d 1038, 1039 (4th Cir. 1993) (affirming the conviction of one of two men who brought a D&D adventure to life by entering the home of an elderly couple and assassinating them); cf. Sellers v. Ward, 135 F.3d 1333, 1335 (10th Cir. 1998) (defense counsel argued that Sellers’s addiction to D&D dictated his actions and disconnected him from any consciousness of wrongdoing or [**20] responsibility for three murders); Watters v. TSR, Inc., 904 F.2d 378, 380 (6th Cir. 1990) (describing a teenager who committed suicide as “a ‘devoted’ Dungeons and Dragons player who became absorbed by the game to the point of losing touch with reality”).

And therefore,

Conclusion

Despite Singer’s large quantum of affidavit testimony asserting that D&D is not associated with gangs and that the game can improve inmate rehabilitation, he has failed to demonstrate a genuine issue of material fact concerning the reasonableness of the relationship between Waupun’s D&D ban and the prison’s clearly legitimate penological interests. The district court’s grant of summary judgment is therefore AFFIRMED.

This Muslim prisoner was denied a preliminary injunction on a case involving claims on injury and violation of constitutional rights. The “ninja turtle” description referred to the back brace he wore after injury.

Plaintiff Samuel Abdul-Jabbar (“Plaintiff”), proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on May 26, 2005, alleging violations of his Eighth Amendment right to be free from cruel and unusual punishment while incarcerated at Elmira Correctional Facility (“Elmira” or “the correctional facility”), related to an incident occurring on February 28, 2005, when Plaintiff, while pushing a mess hall garbage wagon to the correctional facility’s dumpster, stepped into a pothole, fell on his back, twisting his foot and knee.

And

Plaintiff, incarcerated at Gouveneur Correctional Facility (“Gouveneur”), moves for a preliminary injunction enjoining Defendants Dr. Canfield and Hopkins, as well as various DOCS employees at Gouveneur, from retaliating against Plaintiff for commencing the instant action by subjecting Plaintiff to discrimination, physical abuse, property damage, offensive remarks and harsh treatment. Plaintiff’s Affidavit at 3. In support of the motion, Plaintiff asserts that (1) after undergoing back surgery on March 3, 2008, Gouveneur Correctional Officer (“C.O.”) Brown (“Brown”), in reference to a back brace Plaintiff then wore, called Plaintiff a “ninja turtle“, Plaintiff’s Affidavit at 4; (2) Gouvernuer Housing Sergeant DeMarco and a hearing officer conspired to find Plaintiff guilty of a false misbehavior report charging Plaintiff with failing to keep his living area clean, id. at 4-5; (3) unnamed staff and corrections officers at Gouveneur failed to provide Plaintiff with the “flat steel bottom bed” for which Plaintiff had been medically approved following his back surgery; (4) unnamed prison staff members denied Plaintiff the opportunity to participate in an induction dinner for a Muslim group at Gouveneur, id. at 6-7; and (5) during the second week of November 2008, certain unspecified items were missing from a package Plaintiff retrieved from Gouveneur C.O. Jenkins, id. at 7

But

Plaintiff presents no evidence, by affidavit or otherwise, supporting a finding that Plaintiff is likely to prevail on the merits of the instant action, or that without the requested injunctive relief, Plaintiff will suffer irreparable harm without such relief. [footnote omitted]